The Arbitrary Power of Preliminary Inquiry

The Bhartiya Nagrik Suraksha Samhita (BNSS) has given a cosmetic facelift to the Criminal Procedure Code (CrPC). Among revising the few provisions, the notable introduction of subclause 3, Section 173 of the BNSS, renders police the power to conduct a preliminary inquiry before registration of the First Information Report (FIR).

This changes the procedural dynamics and gives the men in khaki a temporary black gown for 14 days to decide whether a cognizable offense, an offense for which police can arrest without the authority of the magistrate, has been committed or not. The provision needs a sanction of the Deputy Superintendent of Police (DSP) to conduct a preliminary inquiry and must conclude the inquiry within the time frame but nothing about the time frame in seeking permission from the DSP has been charted.

In case the police refrain from filing the FIR, the informant has recourse to approach the Superintendent of Police and subsequently could file a private complaint before the magistrate. Save the hassle, the judiciary in the catena of precedents, has cleared the fog that an FIR must be registered on disclosure of a cognisable offense. On the surface, the provision to inquire appears to enable the police to verify the prima facie case of cognisable offenses – preventing frivolous and false reporting, this could have been achieved through existing provisions in the procedure code like post-investigation closure report or existing penal provisions that sanctions giving false information to a public servant.

The discretionary power of the police has potential implications surrounding the rights of the informant/ complainant in the criminal justice system. The delay could be exacerbated by further delay in filing the occurrence report, as this would further vitiate the trial.

For such instances, the delay in taking cognisance by the police might cause prejudice to the informant/ complainant and potentially raise strong suspicion about the authenticity of the information to the adjudicating authority. The FIR might not be a substantive piece of evidence but has a probative value which is corroborated by the prosecution in the trial to meet the end of the criminal justice system.

The reluctance of the police to take a report of cognisable offense has been customary. In the landmark Lalita Kumari case, a five-judge Constitution Bench unequivocally mandated the registration of FIR to eliminate political influence and corruption. The apex court while interpreting the provision of the Criminal Procedure Code and the Criminal Law (Amendment) Act of 2013 that the legislative intent is manifest that FIR must be compulsorily registered without a preliminary inquiry.

The necessity of the directive was underscored by the apex court quoting the NCRB statistics in the same case, which revealed that over 60 lakh cognizable offenses were registered in 2012, however, the figure likely underrepresents the true extent of crime, as the practice of “burking” – under political or other influence, twisting the facts of cognisable offence to non-cognisable offence and other breaches of official duty on part of police could mean that another 60 lakh offences go unrecorded every year.  The speculation was not a dart in the dark, pilot research by the Tata Institute of Social Sciences in 2016 similarly found that the number of unregistered FIRs is approximately equal to the number of registered ones.

The abuse of the preliminary inquiry by the police is likely to disproportionately impact the vulnerable sections of society while serving as a tool of leverage for the privileged.

According to Section 199 of Bhartiya Nyay Samhita (BNS), non-registration of FIR attracts penal sanctions when the police do not record an FIR in offences against women and children. However, this protection does not extend to marginalised communities, particularly those seeking justice under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, or the Protection of Civil Rights Act. The gap in protection for the marginalised section risks entrenching the very disparities the justice system is meant to dismantle.

For instance, a study conducted by the Navsarjan Trust on access to justice for Dalit women paints a grim picture of the challenges faced by this marginalised community. Focusing on three districts: Rajkot, Kutch, and Bhavnagar. The research examined cases of atrocities against Dalit women from 2004 to 2009, through RTI (Right to Information) it was revealed that 704 cases of violence were registered, out of which 50.27% of crimes caused death or grave physical injury and shockingly the conviction rate stood at 0.7%.

The systematic reform to improve access to justice is down a challenging path, without setting the wheel of criminal law in motion - hindered by the guise of preliminary inquiry before registering an FIR could potentially stall the entire process at the very outset. Given the power to investigate a cognisable offence before registration of FIR is not just prone to abuse but is contrary to the precedent set by the apex court in several cases. Such a practice not only undermines the integrity but when a law allows for actions that do not align with the highest judicial interpretations, it threatens the consistency and fairness of the justice system. In the words of Justice Krishna Iyer, if the salt has lost its savour, wherewith shall it be salted?

The writers are legal practitioners based in Delhi. The views are personal.